By Roger Shuler | Wednesday, October 23, 2013
|Jessica Medeiros Garrison|
Aside from the lawsuits' merits (or lack thereof), we see an alarming trend involving the plaintiffs. They and their associates can't even get the complaints served without engaging in fraudulent conduct. And I don't use the "f word" casually here. The cases hardly are off the ground, and court documents show that individuals acting on the plaintiffs' behalf have engaged in fraud on the court.
We already have reported on the improper service that has been attempted in both cases--via a thuggish private process server in the Garrison case; via a Shelby County deputy and his unconstitutional traffic stop in the Riley matter. I filed documents in both cases late last week, seeking to have service quashed.
(See Motions to Quash at the end of this post. The version of the Riley document seen here is not official. It does not include a time stamp because the Shelby County civil clerk's office was closed on Wednesday, when we filed it. We were instructed to place it with the criminal clerk's office, with assurances it would be properly time stamped.)
Some might view service-related matters as mere technicalities. But that is not how the law views them. It is not uncommon for a lawsuit to be dismissed in its entirety due to improper service of process. And if evidence shows that Riley and Garrison knowingly engaged in, or approved of, fraudulent conduct in the service of process, their lawsuits will deserve that fate.
Why is service so important? The same concepts generally apply in both state and U.S. courts, and they are well stated in a 2011 federal case styled Dunagan v. ABBC Inc., in the Southern District of Alabama:
This court lacks jurisdiction to enter judgment against a party that has not properly been served with process. See, e.g., Hemispherx Biopharma, Inc. v. Johannesburg Consol. Investments, 553 F.3d 1351, 1360 (11th Cir. 2008) (“Service of process is a jurisdictional requirement: a court lacks jurisdiction over the person of a defendant when that defendant has not been served.”) (citation omitted); In re Worldwide Web Systems, Inc., 328 F.3d 1291, 1299 (11th Cir. 2003) (“Generally, where service of process is insufficient, the court has no power to render judgment and the judgment is void.”).
Translation: A court has no authority over a defendant who has not been lawfully served. Can a plaintiff get around that little problem if a defendant clearly knows about the action? Nope, and that is clear from an Alabama divorce case styled Cain v. Cain, 892 So. 2d 952 (Ala. Civ. App., 2004):
Judging by the language of the trial court's August 2002 order denying of the former husband's motion to dismiss, which was entered after the alias summons and petition had purportedly been served, the trial court apparently concluded that the former husband's acknowledgment that he had actually received the trial court's order to appear, as evidenced by the former husband's July 2002 letter, was sufficient for it to also conclude that proper service of the summons and petition had been perfected. However actual knowledge of an action “does not confer personal jurisdiction without compliance with Rule 4.” Gaudin v. Collateral Agency, Inc., 624 So.2d 631, 632 (Ala.Civ.App.1993).
The Cain case goes on to make a key point: It's up to the plaintiff to ensure that proper service is completed; that burden does not fall on me or any other defendant:
When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.
My Motions to Quash timely challenge service in the Riley and Garrison lawsuits. Now, it is up to plaintiffs to prove "process was performed correctly and legally." They can't possibly do that because it's a matter of fact that process was not legally performed.
Even worse, documents in both cases indicate that the individuals who purported to complete process have made false or incomplete statements under oath to the court. Could that constitute perjury that would merit stiff sanctions against those who made the statements--and those who put them up to it?
If the rule of law still means anything in Alabama, the answer should be yes. In the "reality bites" world of Alabama courtrooms, who knows what will happen?
The fundamental question is this: Do Alabama judges have the cojones to hold GOP power brokers Rob Riley and Jessica Garrison accountable for their bogus attempts to serve process on me (and my wife, in the Riley case)?
We will be on hand to make sure you learn the answers.
(A footnote: We are making progress in identifying the process server who claims he "personally served" me by throwing documents down our driveway, toward the garage, while making no contact with anyone living at our house. The service return includes an illegible signature, but the address is 2012 Magnolia Ave., Birmingham, AL, with a phone of (205) 930-9333. That apparently is home to a company called Investigations Inc., which has a Web site at investigationpro.com. The site's "About Us" page tells us the company is owned by one Charles Hopkins (email@example.com). Hopkins, or someone who works for him, is anything but a pro; "fraud" would be a more fitting term. More importantly, whoever filed a document stating he personally served me committed a fraud on the court.)
(To be continued)